This Article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debate—historical, institutional, and normative—since the founding of the Republic. Precisely because of the sensitivity of the subject, the Supreme Court has both warned about the judicial branch’s comparative lack of expertise in the field and established a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this discussion, however, neither the Supreme Court nor any scholar has ever examined the complicated relationship between stare decisis and foreign affairs.

This Article first contextualizes the discussion with an analysis of the foundations of stare decisis. After a review of the values that animate the doctrine, it explores the subtly important jurisdictional premises of stare decisis. Almost entirely overlooked by both courts and scholars, these inherent jurisdictional limitations on the force of precedent have direct implications for the proper role of stare decisis in foreign affairs law. The Article then examines the special constitutional arrangement of powers in the field, in particular the respective roles of Congress and the executive. Just as significant, the Article also canvasses the multiplicity of avenues by which the American legal system channels foreign affairs issues to the federal courts. This growing interbranch tension highlights the significance of reflexively cloaking the resultant judicial precedents with full stare decisis effect.

The analysis in this Article demonstrates that in fact a more nuanced and accommodating understanding of precedent is required with respect to certain fundamental aspects of foreign affairs law. For purely domestic statutes, fidelity to the value judgments first made by Congress within and for the domestic legal system should avoid both the fact and appearance of independent judicial agency. Moreover, when Congress takes it upon itself to define the entire content of the law—without importing international legal norms—the courts need look only to familiar domestic sources and materials in their interpretive inquiries. Matters are different, however, for the broad and expanding field of controversies that likewise fall within the Article III “judicial Power” but that involve the courts in the enforcement of rights or obligations grounded in international law. Within this field, the analysis in this Article demonstrates that the likelihood and consequences of judicial error are greater, that precedents are particularly susceptible to rapid erosion by exogenous forces of change, and that institutional considerations make judicial leadership that has been fortified by rigid precedent particularly problematic. It ultimately concludes that these distinct considerations should function as an additional “special justification” for reexamining international law precedents. Consistent with the systemic values of stare decisis, however, the reexamination power should exist only for the issuing court; lower courts in the hierarchically integrated judicial branch—courts that are subject to the vertical dimension of stare decisis—should remain bound by precedents to the full extent of existing law.

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. This volume examines in detail attempts that were made in certain significant post-conflict or post-authoritarian situations to strengthen the domestic rule of law with the aid of international law. Attention is paid in particular to the empowerment of domestic courts in such situations. International law may serve these courts as a tool for reconciling the demands for new rights and responsibilities with due process and other rule of law requirements.

The volume contains case studies of the role of domestic courts in various post-conflict and transitional situations (Balkans, Iraq, Afghanistan, Nepal, East Timor, Russia, South Africa, and Rwanda). Each of these case studies seeks to answer questions relating to the exact constitutional moment empowering domestic courts to apply international law, the range of international legal norms that are applied, the involvement of international actors in bringing about change, the contextualization of international legal norms in states in transition, tension within such states as a result of the application of international law, and the legacy of domestic courts’ empowerment in terms of durable rule of law entrenchment.

Friday, March 2, 2012

This entry for the International Encyclopedia of Ethics discusses the moral and legal requirement of proportionality in armed conflict. Among other things, the entry discusses the relationship between proportionality and just cause; the relative weight of the harms inflicted and the harms prevented by war and acts of war; the relevance of national partiality; and the effect of human shields and mixed battle spaces on the stringency of the proportionality requirement.

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at the University of Georgia School of Law on October 20-21, 2012.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted by April 15. Proposals will include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract. Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author. Abstracts containing identifying information will not be reviewed. Proposals will be vetted by the Research Forum Committee with selections to be announced by July 15.

At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper 4 weeks before the Research Forum. The expectation is that drafts will be posted on the Research Forum website.

This Article demonstrates the central importance of Crimes Against Humanity (CAH) prosecutions at the ad hoc international criminal tribunals and in the International Criminal Court (ICC). It represents the first comprehensive and empirical assessment of what CAH charges accomplish as a matter of observable practice. This empirical analysis informs the construction of a new theory of CAH in modern international criminal law. The Article analyzes the early jurisprudence of the ICC and challenges the conventional wisdom that CAH must be interpreted unduly restrictively, with reference to Nuremberg in mind. Instead, CAH at the world’s first permanent international criminal court must emerge from the shadow of Nuremberg -- as the framers of the Statute intended it to do -- and continue to develop as a contemporary response to widespread or systematic human rights violations against civilian populations. Opinions in the Court’s early case law unduly restricting the scope and application of CAH or proposing a return to the Nuremberg paradigm may have the effect of limiting the effectiveness of CAH charges at the ICC. This could render CAH at the ICC, like genocide at the ICTY, impotent not only as a basis for the post hoc punishment of offenders, but in terms of prevention and deterrence. The Article critiques this jurisprudence with a view towards developing a theory of CAH at the ICC that not only respects State sovereignty, but implements its mandate to prevent and punish “unimaginable atrocities that deeply shock the conscience of humanity.”

This book examines the concept of individual criminal responsibility for serious violations of international law, i.e. aggression, genocide, crimes against humanity and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed 'intellectual perpetrators'. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable.

By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defence of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.

Food aid has become a contentious issue in recent decades, with sharp disagreements over genetically modified crops, agricultural subsidies, and ways of guaranteeing food security in the face of successive global food crises. In Hunger in the Balance, Jennifer Clapp provides a timely and comprehensive account of the contemporary politics of food aid, explaining the origins and outcomes of recent clashes between donor nations—and between donors and recipients.

She identifies fundamental disputes between donors over "tied" food aid, which requires that food be sourced in the donor country, versus “untied” aid, which provides cash to purchase food closer to the source of hunger. These debates have been especially intense between the major food aid donors, particularly the European Union and the United States. Similarly, the EU's rejection of GMO agricultural imports has raised concerns among recipients about accepting GMO foodstuffs from the United States. For the several hundred million people who at present have little choice but to rely on food aid for their daily survival, Clapp concludes, the consequences of these political differences are profound.

Peter A. Gourevitch (Univ. of California, San Diego - Political Science), David A. Lake (Univ. of California, San Diego - Political Science), & Janice Gross Stein (Univ. of Toronto - Political Science) have published The Credibility of Transnational NGOs: When Virtue is Not Enough (Cambridge Univ. Press 2012). Contents include:

There is considerable variation in the nature, scope and institutional forms of legal protection for valuable geographical brands such as Champagne, Colombian coffee and Darjeeling tea. While regional products are increasingly important for producers, consumers and policy makers, the international legal regime under the TRIPS Agreement remains unclear. Adopting a historical approach, Dev Gangjee explores the rules regulating these valuable geographical designations within international intellectual property law. He traces the emergence of geographical indications as a distinct category while investigating the key distinguishing feature of the link between regional products and their places of origin. The research addresses long-standing puzzles, such as the multiplicity of regimes operating in this area; the recognition of the link between product and place and its current articulation in the TRIPS definition; the varying scope of protection; and the extent to which geographical indications ought to be treated as a category distinct from trade marks.

Workshop, held on the occasion of the Fifth Biennial ESIL Conference on ‘Regionalism and International Law’

Valencia, 13–15 September 2012

Call for Papers

The IG on Business and Human Rights would like to invite all members of the ESIL to submit works addressing contemporary issues and debates in the field of international business and human rights. Papers might consider (but are not limited to) the following topics:

Corporate responsibilities in developing countries

Regulation of private military contractors

Business in conflict zones

Ruggie’s principles: future applications by states and corporations

The future of Alien Torts Statute litigation

Labour rights

Children’s rights

Judicial and non-judicial accountability mechanism

Corporate complicity and criminal liability

Piercing the corporate veil: legal theory and practice

Please submit a 300-word proposal via email to marta.requejo@usc.es by 30 March 2012, accompanied by a short cv of the applicant.

All applicants will be notified of the outcome of the selection process by 30 April 2012*. Those whose papers have been chosen will be asked to provide a final version by mid-August.

*Please note that the ESIL Interest Group on Business and Human Rights is unable to provide funds to cover the conference registration fee or related transport and accommodation costs.

International courts and tribunals are key actors in international law, both because of their primary dispute resolution function and for their role in developing international law in a more general sense. Their growing number and complexity makes a detailed study of their practice particularly relevant.

The Rules, Practice, and Jurisprudence of International Courts and Tribunals examines existing international dispute resolution institutions, including those of general jurisdiction (ICJ, PCA), specialised jurisdiction (ITLOS, ICSID, WTO), as well as human rights courts, international criminal courts and tribunals, courts of regional integration agreements, claims commissions and tribunals, and administrative tribunals of international organizations. Uniquely, it assesses both procedural rules and essential case-law, making it relevant for both academics and practitioners in international law.

At various times in modern history, the international community has turned to international litigation as a hoped-for means of avoiding, ending, or dealing with the consequences of armed conflict; but until the past three decades, such litigation rarely had a significant impact. However, since the 1980s, international civil tribunals have become increasingly involved in armed conflicts, sometimes with important results. This book explores the recent cases in which the International Court of Justice and other tribunals have dealt with such situations. It assesses the manner in which these cases have been decided, the degree to which they have affected the resolution of the conflicts in question, and their contribution to the development of the applicable substantive law.

In 1997, a Mexican national named Jose Ernesto Medellin was sentenced to death for raping and murdering two teenage girls in Texas. In 2004, the International Court of Justice ruled that he was entitled to a new trial, since the arresting officers had not informed him of his right to seek assistance from the Mexican consulate prior to trial, as prescribed by a treaty ratified by Congress in 1963. In 2008, amid fierce controversy, the U.S. Supreme Court declared that the international ruling had no weight. Medellin subsequently was executed.

As Julian Ku and John Yoo show in Taming Globalization, the Medellin case only hints at the legal complications that will embroil American courts in the twenty-first century. Like Medellin, tens of millions of foreign citizens live in the United States; and like the International Court of Justice, dozens of international institutions cast a legal net across the globe, from border commissions to the World Trade Organization. Ku and Yoo argue that all this presents an unavoidable challenge to American constitutional law, particularly the separation of powers between the branches of federal government and between Washington and the states. To reconcile the demands of globalization with a traditional, formal constitutional structure, they write, we must re-conceptualize the Constitution, as Americans did in the early twentieth century, when faced with nationalization. They identify three "mediating devices" we must embrace: non-self-execution of treaties, recognition of the President's power to terminate international agreements and interpret international law, and a reliance on state implementation of international law and agreements. These devices will help us avoid constitutional difficulties while still gaining the benefits of international cooperation.

Workshop, held on the occasion of the Fifth Biennial ESIL Conference on ‘Regionalism and International Law’

Valencia, 13–15 September 2012

Call for Papers

Universalism and Particularism in International Law

On the occasion of the Fifth Biennial ESIL Conference in Valencia, the ESIL Interest Group on International Legal Theory invites submissions for a workshop on the theoretical dimensions of the universalism–particularism dynamic in international law.

The Topic

This panel will address the universal and the particular in the structures of international law and the role of regionalism in expressing, mediating, cutting across or subverting universal-particular dynamics. International legal scholars are accustomed to analysing questions of regionalism on the basis of general theories of normative differentiation and centre–periphery dynamics, typically adapted from social theory, historical sociology, or political economy. Indeed, only a few scholars have sought to undertake independent investigations into the competing interpretations of the concept of regionalism in international legal discourse itself. What might a sustained theorisation of the concept of regionalism in international law look like? How might such a theorisation relate to international legal debates animated by universalism and/or particularism? To what extent should international law recognize and support the political, historical, cultural, and economic differences among states?

The Application Process

We invite submissions of abstracts of no more than 400 words from all scholars with an interest in international legal theory. Selection will be based on scholarly merit, and with regard to producing an engaging workshop, but without prejudice to gender, seniority, language or geographical location.

Applications should be submitted to legaltheory@esil-sedi.eu by 1 April 2012. All applicants will be notified of the outcome of the selection process by 15 April 2012.

Please note that the ESIL Interest Group on International Legal Theory is unable to provide funds to cover the conference registration fee or related transport and accommodation costs. For further information about the ESIL Interest Group on International Legal Theory, please see: http://esiligilt.blogspot.com

The Co-ordinating Committee of the ESIL Interest Group on International Legal Theory

According to many scholars, the rejection of the Constitutional Treaty and the disappointment caused by the contents of the Lisbon Treaty –- defined by Somek (2007) as a mere post-Constitutional Treaty – mark the failure of any possible constitutional ambition for the European Union (EU). This book aims at challenging this point both from a theoretical point of view – by describing the EU as an example of “evolutionary constitutionalism” – and a pragmatic one (i.e., looking at the functioning of concrete constitutional experiences). My idea is that the latest attempts at amending the EU treaties – the period of the “Conventions” – can be traced back to the genus of mega-constitutional politics and starting from this parallelism I argue that the so-called constitutional “failure” of the EU is actually a confirmation of the current constitutional nature of the EU rather than the proof of the impossibility of transplanting the constitutional discourse to the EU level.

As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world's worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victor's justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. In this exceptional book, one of the leading writers in the field of international criminal law explores these controversial issues in a manner that is accessible both to lawyers and to general readers.

Professor William Schabas begins by considering the discipline of international criminal law, outlining the differing approaches to the description of international crimes and examining the frequent claims relating to the retroactive application of these crimes. The book then discusses the relationship between genocide and crimes against humanity, studying the fascination with what Schabas calls the 'genocide mystique'. International criminal tribunals have often been stigmatized as an exercise in victor's justice. This book traces how this critique developed and the difficulty it poses to the identification of situations for prosecution by the International Criminal Court. The claim that amnesty for international crimes is prohibited by international law is challenged, with a more nuanced approach to the relationship between justice and peace being proposed. Throughout the book there is a strong historical perspective, with constant reference to the early experiments in international justice at Nuremberg and Tokyo. The work also analyses the growing pains of the International Criminal Court as it enters its second decade.

Kishan Khoday &
Usha Natarajan, Sustainable Development as Freedom: On the Nature of International Law and Human Development

Geert-Jan Alexander Knoops, The Legal-Political Connotation of Material Support to Terrorism

Notes and Comments

Michele Nino, The Protection and Promotion of Sport in the European Union Following the Treaty of Lisbon and the Bernard Ruling

Anna Vigorito, The CAT-MED Program and EU Policies for Sustainable Urban Development

Forum – Jurisprudential Cross-Fertilization: An Annual Overview

Module – International Criminal Law – The Relationship Between International Criminal Tribunals and Their Relationship with the ICJ or Another International Court or Arbitral Tribunal - Comment and Analysis - Fausto Pocar & Andrea Carcano

Module – European Law – The Relationship Between the European Courts and Their Relationship with the ICJ or Another International Court or Arbitral Tribunal - Comment and Analysis - Oreste Pollicino

Sunday, February 26, 2012

Sonia E. Rolland (Northeastern Univ. - Law) has published Development at the WTO (Oxford Univ. Press 2012). Here's the abstract:

Seeking to open paths for reconsidering the trade and development relationship at the WTO, this book takes into account both the heritage of the trade regime and its present dynamics. It argues that the institutional processes for creating and implementing trade rules at the WTO and the actual regulatory outcomes are inseparable. A consideration of the development dimension at the WTO must examine both jointly.

It shows that the shortcomings of the Doha Development Round are in part due to the failure to assess trade rules as part of the legal processes and institutions that produced them. This book devotes significant analysis to the systemic impact of the WTO as an institution on developing and least developed members. From a pragmatic perspective, it provides a coherent and systematic analysis of the legal meaning, the implementation, and the adjudication of special and differential treatment rules for developing members. It then evaluates the different regulatory approaches to trade and development from a more theoretical perspective. The book finishes by presenting a range of proposals for a better balance between trade liberalization and the development needs of many WTO members.